The Threshold Agreement

On 8 November 2001, POPCRU entered into a collective agreement with DCS, which set a threshold of 9,000 members for a single registered union or for two or more registered unions acting jointly, or about 22.5% of employees (threshold agreement). The threshold agreement also governs the representation of workers in disciplinary and appeal proceedings. A second collective agreement regulates relations between all workers and the DCS and provides that only unions admitted to the bargaining council or in an area of the bargaining council have the following rights: [68] The option of Section 21 (8C) is, however, only available to unions corresponding to “significant interest or a significant number of workers in the workplace”. A minority union that has no significant interest or a significant number of workers cannot have any organisational rights on the part of an arbitrator. Interpretation of Sections 18 and 20 would be particularly important for minority unions that do not meet the requirements of Section 21 (8C). These unions want to know whether they can exercise their constitutional right to collective bargaining in order to enter into a collective agreement entitling them to organizing rights when the employer is a party to a section 18 collective agreement with a majority union. It found that POPCRU`s interpretation of Section 18 was incorrect because it would in fact deprive minority unions of the right to bargain collective agreements. This right is granted by the Constitution to any union, whether it is a minority or majority union. It is not surprising, in the Court`s view, that Section 18 does not prohibit collective bargaining between an employer and a minority union where there is a collective agreement between that employer and the majority union. Such a ban would be inconsistent with the Constitution and international law. Labour Relations Act 66, 1995 – Interpretation of Sections 18 and 20, Collective Agreements, Representativeness Thresholds” (1) An employer and a registered union whose members are the majority of workers employed by that employer in the workplace, or parties to a bargaining council may enter into a collective agreement that sets a necessary threshold of representation for one or more of the organizational rights mentioned in Section 12. ( 13 and 15. (2) A collective agreement established pursuant to article 1 of the collective agreement is not binding unless the representativeness thresholds in the collective agreement apply in the same way to any registered union that applies to any of the organizational rights mentioned in this subsection.” Before the Constitutional Court, the central dispute between the parties concerns the correct interpretation of Articles 18 and 20 of the LRA.

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